Should Death Automatically Wipe the Legal Slate Clean?

September 11, 2009

How many of you knew that, if a convicted felon dies while his (or her) case is pending appeal, standard operating procedure is for the person's record to be expunged?

Somehow I missed this legal practice, known as abatement, until it received fresh attention this month with the death of a 71-year-old Virignia man serving time for incest. The first WaPo piece on the subject was written with the assumption that, following his December death from pancreatic cancer, James Bevel's case would be dismissed in accordance with years of federal precedent. But, latching on to a couple of legal technicalities, a Loudon County judge ruled Thursday that the abatement hearing would not proceed apace.

Noting that the abatement order says that a hearing must be promptly held "unless good cause is shown by the Commonwealth not to do so," county prosecutors brought in the deceased man's two daughters/victims--one of whom he repeatedly had sex with when she was 14 and 15--to remind the judge of how the experience had devastated the family. (Bevel was a former civil rights leader whose respected status within the community had made it that much harder for his daughters/victims to come forward.) The judge apparently agreed that the daughters' horrific experience qualified as "good cauase." Also, since Bevel had been prosecuted in state court, federal precedent doesn't necessarily hold sway.

There is still some question about how the case will ultimately be decided or whether the public defender's office will even bother filing an appeal. I hope she doesn't--and, more broadly, I hope the precedent this judge is attempting to set causes the courts to take a second look at what has become a fairly common practice.

I'm sure there are many fine legal priciples underlying abatement that make perfect sense in theory. In practice, it's awfully easy to come up with too many ways in which it can be abused (frivolous appeals, suicide, murder by someone with a monetary interest in the case) or at the very least have unintended fallout.

In this particular instance, the biggest concern is whether these poor women, having suffered such a gross violation, will have the law behave as though the ugliness never happened. But some times there are other, more concrete issues at stake, such as with the most famous beneficiary of abatement: Ken Lay. Deservedly, Enron's former top dog was convicted and thrown in jail. He died during the appeals process, and his entire conviction was erased. Obviously his death meant that Lay didn't walk free, but his record's expungement also meant that his countless victims' claims for restitution were also tossed out. Government efforts to seize his ill-gotten gains were also complicated, seeing as how he wasn't guilty of anything anymore.